Humboldt Lumber Mill Co. v. Crisp

GRAY, C.

This action was brought to enforce mechanics’ liens upon three acres of land oymed by defendant upon which a house in course of construction had been destroyed by fire, without any fault of the owner, before it was completed, and before the claim of lien was filed. The defendant had judgment, and the plaintiff appeals therefrom.

We are of opinion that undep the peculiar language of our Mechanics’ Lien Law the lien has nothing to which it can attach if filed after the destruction of the building.

[687]

Section 1185 of the Code of Civil Procedure provides: ‘‘The land upon which any building, improvement, well, or structure is constructed, together with a convenient space about the same, or so much as may be required for the convenient use and occupation thereof, to be determined by the court on rendering judgment is also subject to the lien, if at the commencement of the work, or of the furnishing of the materials for the same, the land belonged to the person who caused said building, improvement, well, or structure to be constructed, altered, or repaired, but if such person owned less than a fee-simple estate in said land, then only his interest therein is subject to such lien.” If there is no building it will be impossible for the court to determine that any land “may be required for its convenient use.” In this case it was essential that the findings should dispose of all questions as to the land that might be necessary for the convenient use of the building; and accordingly the court did find “that the said land is not, nor is any part thereof, required for the convenient use and occupation of the building for and upon which plaintiffs furnished labor and material.’’

This finding was the logical deduction from the other findings of the court to the effect that before the building was completed, before it was delivered to the owner, and before any lien was filed, it was destroyed by fire without any fault of defendant. In view of these findings and the above-quoted statute, the court could enter no judgment decreeing a lien upon any land. It would not fit the language of the code nor answer the requirements thereof to confine the findings to “such portion of the land as

was necessary